i

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

AMERICAN ATHEISTS, INC. et al,

Plaintiffs, Docket No. 1:11-cv-06026 (DAB)

v. ECF CASE

PORT AUTHORITY OF NEW YORK AND

NEW JERSEY, et al.

Defendants.

AMICUS CURIAE BRIEF OF

THE AMERICAN CENTER FOR LAW AND JUSTICE

AND THE COMMITTEE TO PROTECT THE

GROUND ZERO CROSS IN SUPPORT OF

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

JOSEPH A. RUTA* #Jr-0010

RUTA, SOULIOS & STRATIS, LLP

ROBERT W. ASH+

AMERICAN CENTER FOR LAW & JUSTICE

JAY ALAN SEKULOW

STUART J. ROTH+

JORDAN A. SEKULOW+

AMERICAN CENTER FOR LAW & JUSTICE

DAVID A. FRENCH+

AMERICAN CENTER FOR LAW & JUSTICE

Counsel for Amici Curiae *Counsel of record +Not admitted in this jurisdiction

August 20, 2012

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

INTEREST OF AMICI AND SUMMARY OF ARGUMENT .......................................................1

STATEMENT OF FACTS ..............................................................................................................2

ARGUMENT ...................................................................................................................................6

I. THE DECISION BY THE MUSEUM TO DISPLAY THE GROUND ZERO

CROSS IS A PERMISSIBLE EXERCISE OF GOVERNMENT SPEECH ...........6

II. A MUSEUM EXHIBIT THAT CONTAINS AN ARTIFACT OF A RELIGIOUS

NATURE DOES NOT CONSTITUTE A VIOLATION OF THE

ESTABLISHMENT CLAUSE ................................................................................8

CONCLUSION ..............................................................................................................................11

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TABLE OF AUTHORITIES

CASES

Allegheny v. ACLU, 492 U.S. 573 (1989) ........................................................................................9

Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000) ..............................7

Brooklyn Inst. of Arts & Sciences v. City of N.Y., 64 F. Supp. 2d 184 (E.D.N.Y. 1999)...............10

Lynch v. Donnelly, 465 U.S. 668 (1984) ....................................................................................9, 10

Nat’l Endowment for Arts v. Finley, 524 U.S. 569 (1998) ..............................................................7

O’Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir. 2005) ......................................................9

Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009) ........................................................ 1, 6-8

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) ......................................7

Rust v. Sullivan, 500 U.S. 173 (1991) ..............................................................................................7

OTHER AUTHORITIES

Greg Gittrich & Corky Siemasko, In Rubble a Sacred Find: Ceremony At Cross, The New York

Daily News, Oct. 5, 2001 .................................................................................................................3

News Release, President-Elect Obama To Take Oath of Office on Lincoln-Inaugural Bible from

Library of Congress, Library of Congress (Dec. 23, 2008), available at

http://www.loc.gov/today/pr/2008/08-236.html ..............................................................................5

Out of the Ashes: World Trade Center Cross Moved to Permanent Home at 9/11 Memorial

Museum, The Daily Mail (July 25, 2011, 7:55 PM), available at

http://www.dailymail.co.uk/news/article-2018270/World-Trade-Center-cross-moved-permanent-

home-9-11-Memorial-Museum.html ............................................................................................ 4-5

President Joe Daniels: WTC Cross is ‘Part of History’, 9/11 Memorial (July 28, 2011, 12:26

PM), http://www.911memorial.org/blog/911-memorial-president-joe-daniels-wtc-cross-part-

history-updated ................................................................................................................................5

Reshma Kirpalani, American Atheists Sue Over World Trade Center Cross, ABC News

(July 27, 2011), http://abcnews.go.com/US/atheists-sue-cross-world-trade-center-

museum/story?id=14169830#.UC0OUqM6KM8 ..........................................................................2

Rod Dreher, Holy Symbols of Hope Amid Rubble, The New York Post (Sept. 23, 2001),

http://www.nypost.com/p/news/item_Iygp1LxwHFH1BZ70YFOepO ..........................................2

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The Charters of Freedom, The National Archives,

http://www.archives.gov/exhibits/charters/declaration.html (last visited Aug. 9, 2012) ................5

The Museum Exhibition Design, 9/11 Memorial, http://www.911memorial.org/museum-

exhibition-design-1 (last visited Aug. 14, 2012) .............................................................................4

The Star-Spangled Banner: The Flag That Inspired the National Anthem, The Smithsonian,

http://americanhistory.si.edu/starspangledbanner/the-lyrics.aspx (last visited Aug. 9, 2012) ........5

Through Feb. 28: Exhibit Marks Anniversary of Martin Luther King, Jr. Day, The UDaily

(Jan. 14, 2011, 2:24 PM),

http://www.udel.edu/udaily/2011/jan/MartinLutherKingAnniversary011411.html ................... 5-6

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INTEREST OF AMICI1 AND SUMMARY OF ARGUMENT

The American Center for Law and Justice (ACLJ) is an organization dedicated to the

defense of constitutional liberties secured by law. ACLJ attorneys have argued numerous cases

before the Supreme Court of the United States and participated as amicus curiae in a number of

significant cases involving both the Free Speech and Establishment Clauses of the First

Amendment, including, most notably, Pleasant Grove v. Summum, 129 S. Ct. 1125 (2009).

The Committee to Protect the Ground Zero Cross consists of more than 190,000

Americans who seek to preserve history and honor the actual experience of survivors and First

Responders at Ground Zero.

Plaintiffs’ lawsuit represents a dangerous and unprecedented attempt to literally rewrite

history and cleanse the record of a historically significant artifact. In the days and weeks

following the September 11, 2001 terrorist attacks, the challenged World Trade Center Cross

(the “Cross”) had a widely documented and positive effect on the First Responders at the Ground

Zero site. It is entirely appropriate and lawful for the curators of a museum to acknowledge the

Cross’s actual, historic role by placing it in the September 11 Memorial Museum.

The Supreme Court of the United States has directly addressed the constitutionality of

religiously themed museum exhibits and has clearly held that such exhibits are within the realm

of appropriate government speech. See Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009).

In fact, the constitutionality of religious displays in museums has long been presumed by the

Court. Simply put, historically significant religious artifacts can be displayed in taxpayer-

supported museums, and any contrary ruling would lead to absurd results. Can the federal

government not display the Declaration of Independence? Must it not display the Lincoln Bible

1 No party’s counsel in this case authored this brief in whole or in part. No party or party’s counsel contributed any

money intended to fund preparing or submitting this brief. No person, other than amici, their members, or their

counsel contributed money that was intended to fund preparing or submitting this brief.

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(upon which President Obama swore the Oath of Office)? Is it required to conceal the original

text of the Star Spangled Banner?

Offended observers (even observers whose offense is so great that they claim physical

illness) cannot be permitted to rewrite history or constitutional precedent. Acknowledging

history does not establish a religion, and Plaintiffs’ lawsuit is without merit.

STATEMENT OF FACTS

On September 13, 2001, two days after the worst terrorist attacks in American history,

New York City firefighter Frank Silecchia discovered two steel beams in the shape of a cross just

after recovering three bodies from the rubble of the collapsed World Trade Center. Silecchia

told ABC News of his immediate reaction: “I was overwhelmed with the image of my faith . . . it

brought me to tears and to my knees.” Reshma Kirpalani, American Atheists Sue Over World

Trade Center Cross, ABC News (July 27, 2011), http://abcnews.go.com/US/atheists-sue-cross-

world-trade-center-museum/story?id=14169830#.UC0OUqM6KM8.

Silecchia was not alone in his reaction. Contemporaneous reports are unanimous in

recording the immediate and profound effect that the Cross had on First Responders and rescue

workers. On September 23, 2001, the New York Post’s Rod Dreher wrote:

As word of the find has spread at ground zero, exhausted and emotionally

overwhelmed rescue workers have been flocking to the site to pray and meditate.

“People have a very emotional reaction when they see it,” says the Rev.

Carl Bassett, an FBI chaplain. “They are amazed to see something like that in all

the disarray. There’s no symmetry to anything down there, except those crosses.”

Rod Dreher, Holy Symbols of Hope Amid Rubble, The New York Post (Sept. 23, 2001),

http://www.nypost.com/p/news/item_Iygp1LxwHFH1BZ70YFOepO.

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On October 5, 2001, the New York Daily News covered the Cross’s emotional dedication

ceremony and its elevation to a place of prominence at Ground Zero:

When the World Trade Center collapsed, a section of the steel girders that

supported the mighty north tower landed in the rubble in the shape of a cross.

Since that terrible day, the cross has become an inspiration to many of the

firefighters and workers at Ground Zero.

At noon yesterday, rescuers put down their tools, took off their helmets

and gathered at the base of their 20-foot-tall icon for a blessing ceremony.

. . .

Before the Ceremony, a welder fused a base to the cross and melted onto it

several commemorative state quarters – each representing the home states of the

rescuers.

Then the cross was lifted by a crane onto a concrete beam over a fallen

crosswalk on West St. As a bagpiper played “Amazing Grace,” many were

overcome by emotion.

Greg Gittrich & Corky Siemasko, In Rubble A Sacred Find: Ceremony At Cross, The New York

Daily News, Oct. 5, 2001. The Cross soon became a destination spot, not just for the First

Responders and rescuers, but also for prominent guests:

In subsequent days, Silecchia, a born-again Christian, led his fellow rescue

workers and others - many of whom were grieving the loss of loved ones - to the

crosses.

A veteran firefighter who had been digging through the twisted metal for

his lost firefighter son. An angry cop who lost someone in the collapse. A Vatican

representative, who photographed the crosses for the pope. And ABC’s Barbara

Walters.

He says they all left in peace.

“Barbara Walters’ niece lost her son in the building,” he said. “Barbara

told me she wanted people to see the House of God, so people who needed

healing could find it.”

Dreher, supra.

On Saturday, July 23, 2011, the Cross was moved to the “historical exhibition” of the

September 11 Memorial Museum. First Amended Complaint at ¶ 44, American Atheists, Inc. v.

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Port Auth. of N.Y. & N.J. (N.Y. Sup. Ct. 2011) (Index No. 108670-2011). The Museum’s

website shows how the cross is to be exhibited:

The Museum Exhibition Design, 9/11 Memorial, http://www.911memorial.org/museum-

exhibition-design-1 (last visited Aug. 14, 2012).

The historical exhibition has three parts. In part 1, the exhibition explores the events of

9/11 itself and presents the events of the day as they unfolded. Id. In part 2, visitors explore the

“antecedents to 9/11,” including the rise of al Qaeda and the first World Trade Center bombing

in 1993. Id. The final part “take(s) visitors from the immediate aftermath of 9/11 to the present

moment” and chronicles not only the recovery and rescue efforts but also how we understand

“collective grief.” Id. The Cross, as an artifact of the attack itself, is contained in part 3 of the

Museum. See id.

Officials at the September 11 Memorial Museum have acknowledged the Cross’s unique

role in the September 11 story. Joe Daniels, President of the Memorial Foundation noted, “It's

powerful because it provided comfort to so many people - it is a part of the history of the space.”

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Out of the Ashes: World Trade Center Cross Moved to Permanent Home at 9/11 Memorial

Museum, The Daily Mail (July 25, 2011, 1:55 PM), available at

http://www.dailymail.co.uk/news/article-2018270/World-Trade-Center-cross-moved-permanent-

home-9-11-Memorial-Museum.html. The September 11 Memorial Museum considers the Cross

one of the “authentic physical reminders” that tell the story of the attacks and their aftermath.

President Joe Daniels: WTC Cross is 'Part of History’, 9/11 Memorial (July 28, 2011, 12:26

PM), http://www.911memorial.org/blog/911-memorial-president-joe-daniels-wtc-cross-part-

history-updated.

Religious artifacts and explicit religious references are extraordinarily common in our

nation’s public museums. While it would be impossible to list all religiously-themed exhibits,

notable examples are not hard to find. The Library of Congress contains the Lincoln Bible,

which President Barack Obama used to take the Oath of Office. News Release, President-Elect

Obama To Take Oath of Office on Lincoln-Inaugural Bible from Library of Congress, Library of

Congress (Dec. 23, 2008), available at http://www.loc.gov/today/pr/2008/08-236.html. The

National Archives contain the Declaration of Independence, which not only declares the

existence of our “Creator” but also identifies Him as the source of our rights. The Charters of

Freedom, The National Archives, http://www.archives.gov/exhibits/charters/declaration.html

(last visited Aug. 10, 2011). Other historical artifacts, such as the full text of the Star Spangled

Banner and Martin Luther King’s “Letter From a Birmingham Jail,” either declare national

allegiance to God or contain explicitly religious arguments. See, e.g., The Star-Spangled

Banner: The Flag That Inspired the National Anthem, The Smithsonian,

http://americanhistory.si.edu/starspangledbanner/the-lyrics.aspx (last visited Aug. 10, 2011);

Through Feb. 28: Exhibit Marks Anniversary of Martin Luther King Jr. Day, The UDaily (Jan.

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14, 2011, 2:24 PM),

http://www.udel.edu/udaily/2011/jan/MartinLutherKingAnniversary011411.html.

In short, Plaintiffs cannot dispute that the Cross is an historical artifact of the September

11 attacks, they cannot dispute that it had significance to many First Responders and others at

Ground Zero, and they cannot dispute that historical artifacts – even religious artifacts – have

long been placed in America’s public museums.

ARGUMENT

I. THE DECISION BY THE MUSEUM TO DISPLAY THE GROUND ZERO

CROSS IS A PERMISSIBLE EXERCISE OF GOVERNMENT SPEECH

While amici concur with the Defendants’ argument that the September 11 Memorial

Museum is an “independent non-profit corporation” and not a state actor, it is critical to note that

display of the Cross is lawful regardless of the private or public status of the Museum. The

September 11 Memorial Museum’s decision to display the Cross is – at its heart – an exercise of

the Museum’s own academic freedom, designed to educate present and future generations about

one of the darkest days in American history. The museum has the liberty to select exhibits that

advance its educational mission, and that liberty includes selecting even historical exhibits with

religious significance.

Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009) is directly applicable. In

Summum, the city’s “Pioneer Park,” located in the heart of its Historic District, contained 15

permanent displays (11 donated by private individuals), including the city’s first fire department,

a granary, a September 11 monument, and a privately donated Ten Commandments monument.

Id. at 1129. Summum, a religious society, repeatedly wrote the city requesting permission to

erect its own monument in the park. Id. at 1129-30. The proposed monument contained the

“Seven Aphorisms of SUMMUM.” Id. (caps in original). The city denied permission, explaining

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that it only accepted monuments that directly related to the history of Pleasant Grove or were

donated by groups with longstanding ties to the Pleasant Grove Community. Summum sued. Id.

at 1130.

The Court ruled unanimously for the city. First, the Court held that the monuments

represented “government speech” and that a government entity has a right to “speak for itself.”

Id. at 1131 (quoting Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229

(2000)). ”[I]t is entitled to say what it wishes,” id. (quoting Rosenberger v. Rector and Visitors

of Univ. of Va., 515 U.S. 819, 833 (1995)), “and to select the views that it wants to express.” Id.

(citing Rust v. Sullivan, 500 U.S. 173, 194 (1991) and Nat’l Endowment for Arts v. Finley, 524

U.S. 569, 598 (1998) (Scalia, J., concurring in judgment) (“It is the very business of government

to favor and disfavor points of view”)).

Next, the Court found that governments have long practiced selectivity in receiving and

displaying public monuments:

City parks--from those in small towns, like Pioneer Park in Pleasant Grove City,

to those in major metropolises, like Central Park in New York City--commonly

play an important role in defining the identity that a city projects to its own

residents and to the outside world. Accordingly, cities and other jurisdictions take

some care in accepting donated monuments. Government decisionmakers select

the monuments that portray what they view as appropriate for the place in

question, taking into account such content-based factors as esthetics, history, and

local culture.

Id. at 1133-34 (emphasis added). In other words, the decision to receive one permanent

monument or display does not bind a state actor to receive all submitted monuments or displays.

Critically, the Court also found that it is not always possible to “identify a single

‘message’ that is conveyed by an object or structure, and consequently, the thoughts or

sentiments expressed by a government entity that accepts and displays such an object may be

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quite different from those of either its creator or its donor.” Id. at 1136. The Court then

pointedly approved religious displays in museums and noted their applicability to the case:

Museum collections illustrate this phenomenon. Museums display works of art

that express many different sentiments, and the significance of a donated work of

art to its creator or donor may differ markedly from a museum's reasons for

accepting and displaying the work. For example, a painting of a religious scene

may have been commissioned and painted to express religious thoughts and

feelings. Even if the painting is donated to the museum by a patron who shares

those thoughts and feelings, it does not follow that the museum, by displaying the

painting, intends to convey or is perceived as conveying the same “message.”

Id. at 1136 n. 5. In other words, while a religious object may hold undeniable religious meaning

to a patron or donor, the museum can display that object for markedly different reasons --

including its artistic or historic significance. For example, the Library of Congress can display

the Lincoln Bible for its historic significance even if some visitors may be religiously inspired by

the continued presence of the Holy Bible in America’s quadrennial transitions of power.

There are fundamental similarities between Summum’s case against Pleasant Grove and

the Plaintiffs’ claims in this case. Like in Summum, Plaintiffs have based their claims in large

part on the Defendants’ refusal to allow Plaintiffs to erect a monument in a public place. Much

like the plaintiff in Summum demanded that either all religious symbols be allowed or all be

removed, Plaintiffs in this case have demanded either removal of the Cross or permission to

supplement it with other religious (or anti-religious) symbols. (See, e.g., First Amended Compl.,

¶¶ 39, 42, 47, 53). Yet the Court in Summum clearly indicated that accepting one monument or

artifact does not create a government obligation to accept all monuments or artifacts.

II. A MUSEUM EXHIBIT THAT CONTAINS AN ARTIFACT OF A RELIGIOUS

NATURE DOES NOT CONSTITUTE A VIOLATION OF THE

ESTABLISHMENT CLAUSE

Plaintiffs have placed great emphasis on the religious meaning of the Cross to possible

patrons. Yet the Summum Court explicitly stated that the meaning patrons ascribe to museum

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exhibits cannot be imputed to the exhibitor. This language not only applies to any free speech

claims in the case (as it did in Summum), it also reflects standard Establishment Clause doctrine.

See, e.g., Lynch v. Donnelly, 465 U.S. 668, 683 (1984) (“display of the creche is no more an

advancement or endorsement of religion than the Congressional and Executive recognition of the

origins of the Holiday itself as ‘Christ's Mass,’ or the exhibition of literally hundreds of religious

paintings in governmentally supported museums.” (emphasis added)); Allegheny v. ACLU, 492

U.S. 573, 595 (1989) (“[A] typical museum setting, though not neutralizing the religious content

of a religious painting, negates any message of endorsement of that content.” (emphasis added)

(quoting Lynch, 465 U.S. at 692 (O’Connor, concurring)).

These cases, taken together, indicate that museums have a great degree of discretion

when adding objects to their collection, even when those objects are religious. In many ways, a

museum’s educational mission is analogous to a university’s, and at least one federal circuit

court has explicitly upheld the right of a public university to display religiously-themed art as

part of a campus-wide display. See O’Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir.

2005). In Washburn, the university displayed an unflattering bronze sculpture of a Roman

Catholic bishop. Id. at 1119. Called “Holier Than Thou,” the statue offended a number of

Catholic students, and a group of students filed suit, claiming that the statue’s alleged anti-

Catholic message violated the Establishment Clause. Id. at 1120. The university justified the

statue’s presence on campus as part of its effort to engage students “intellectually and

emotionally” and sought to turn the controversy into a “positive educational experience” through

seminars and discussions. Id.

In rejecting the plaintiffs’ Establishment Clause claim, the circuit court found that

“Holier Than Thou’s campus display was similar to a ‘typical museum setting’ that, ‘though not

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neutralizing the religious content of a religious [work of art], negates any message of

endorsement of that content.’” Id. at 1228, (quoting Lynch, 465 U.S. at 692 (O'Connor, J.,

concurring)). The court held that “[a] state is not prohibited from displaying art that may contain

religious or anti-religious symbols in a museum setting.” Id. (citing Lynch, 465 U.S. at 676-77,

677 n.4). Furthermore, a “reasonable observer aware that the statue was part of an outdoor art

exhibit would not believe the university endorsed the message of any particular piece of art

within the exhibit.” Id.

At the trial court level, the City of New York is in fact no stranger to disputes involving

museum displays. In Brooklyn Inst. of Arts & Sciences. v. City of N.Y., 64 F. Supp. 2d 184, 205

(E.D.N.Y. 1999), the court grappled with the meaning of a portrait of the Virgin Mary covered in

elephant dung, concluding, “No objective observer could conclude that the . . . showing of the

work of an individual artist which is viewed by some as sacrilegious constitutes endorsement of

anti-religious views by the City or the Mayor.”

As noted above in the Statement of Facts, the National September 11 Memorial

Museum’s website clearly indicates that the Cross resides in the Museum section of the grounds

and not the separate Memorial. The mockup of the gallery, depicted in the photograph attached

in the Statement of Facts, shows the Cross displayed with a large variety of objects from the

World Trade Centers. No reasonable observer could look at such a display of historical artifacts

and believe that the government was “establishing” the Christian religion.

To hold otherwise would place in jeopardy every historical religious artifact in every

government museum in the nation. The Cross has actual historic significance – a fact that even

the Plaintiffs acknowledge in their Complaint by citing independent news articles about its

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existence and role in the aftermath of September 11. See First Amended Compl. at ¶ 23 n. 1. To

hold that a museum cannot acknowledge history is to destroy the very purpose of a museum.

CONCLUSION

A museum – public or private – has the academic freedom to display religiously-themed

artifacts of historical or artistic significance. The Defendants’ motions for summary judgment

should be granted.

Respectfully submitted,

s/Joseph A. Ruta

JOSEPH A. RUTA* #Jr-0010

RUTA, SOULIOS & STRATIS, LLP

ROBERT W. ASH+

AMERICAN CENTER FOR LAW & JUSTICE

Counsel for Amici Curiae

JAY ALAN SEKULOW

STUART J. ROTH+

JORDAN A. SEKULOW+

AMERICAN CENTER FOR LAW & JUSTICE

DAVID A. FRENCH+

AMERICAN CENTER FOR LAW & JUSTICE

*Counsel of record +Not admitted in this jurisdiction

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served by electronic court filing on

August 20, 2012, to the following:

Edwin F. Kagin

Edwin F. Kagin, Attorney at Law

Danielle Marie Mathey

Mathew J. Mari, Attorney At Law

Jonathan Thomas Trexler

Wong, Wong & Associates, P.C.

Attorneys for Plaintiffs

Megan Lee

Port Authority of New York and New Jersey

Mark Howard Alcott

Gerard E. Harper

Paul Andrew Paterson

Julie Starr Romm

Hannah Suzanne Sholl

Paul, Weiss, Rifkind, Wharton & Garrison

LLP

Attorneys for Defendants

s/Joseph A. Ruta

Joseph A. Ruta

Counsel for Amici Curiae